The High Court has held that the fixtures of the English and Scottish football leagues attract copyright as a database, in the first English judgment to examine the test for subsistence of this type of copyright work.
The High Court has held that the fixtures of the English and Scottish football leagues attract copyright as a database, in the first English judgment to examine the test for subsistence of this type of copyright work (Football DataCo Limited and Others v Brittens Pools Limited and Others  EWHC 841 (Ch)).
The key issue in this trial was whether British football fixtures are protected by intellectual property rights. This issue has been the subject of judicial scrutiny before, both in the UK and the EU.
In 1959, the High Court held that literary copyright subsisted in the English football league’s fixtures (Football League Limited v Littlewoods Pools  1 Ch 637). The test for originality (which remains unchanged for most types of copyright work) was whether some labour, skill, or judgment had been exercised in creating the work (the traditional originality test).
In 1996, the Database Directive (96/9/EC) (the Directive) changed the landscape for works which fell into the definition of a database; that is, "a collection of independent works, data or other materials arranged in a systematic way and individually accessible by electronic or other means". For such works there would be two new rights:
A harmonised (EU-wide) copyright in databases (Article 3, the Directive; section 3A, Copyright, Designs and Patents Act 1988) (database copyright). This applies to databases which, by reason of the selection or arrangement of their contents, constitute the author’s own intellectual creation. This requirement was thought to be more stringent than the traditional originality test.
The database right (also known as the sui generis right) for databases for which there has been a substantial investment in obtaining, verifying or presenting their contents (Article 7, the Directive; regulation 1, Copyright and Rights in Databases Regulation 1997 (SI 1997/3032)) (the database right). (For more information, see feature article “Databases: exploiting your assets (www.practicallaw.com/1-101-7810)”.)
The database right first came before the European Court of Justice (ECJ) in 2004 in four joined cases related to sport scheduling. One of these was the UK case of The British Horseracing Board and Others v William Hill, relating to lists of racehorses and riders (see feature article “Database right: a narrower scope of protection (www.practicallaw.com/6-201-2791)”). The other three cases were brought by a sub-licensee of the English football leagues at the time, Fixtures Marketing Limited (FML), which asserted database rights in football fixtures. All four cases related solely to the database right, and not to database copyright.
In all four cases, the ECJ decided that effort spent on creating materials to be contained in a database could not amount to obtaining, verification, or presentation of the contents of that database (the ECJ decisions). As a result, FML’s claims failed, because the effort expended on the English fixture lists was in creating the contents of the database (that is, the individual fixtures), rather than on obtaining, verifying or presenting those contents.
The claimants in the present case were the English and Scottish professional football leagues, and two of their licensees. They sued various entities, including Yahoo!, a bookmaker, and a football pools operator, all of whom had been publishing the claimants’ fixtures on their websites without a licence. The claim alleged infringement of: the database right; database copyright; and literary copyright.
The court held that the fixture lists were protected by database copyright, but not by the database right or by literary copyright.
It accepted that the fixture preparation process remained one which involved very significant skill and labour, and was not mere "sweat of the brow" work, in that the quality of the fixtures arrived at depended, in part, on the skill of those involved.
There was considerable argument about how the originality test for database copyright should be applied, as this was the first time it had been considered. The key issues were:
Whether effort spent on the "selection or arrangement" should exclude effort spent on the creation of the contents of the database, by analogy with the ECJ decisions. The court rejected this suggestion, finding that there was no reason to apply notions of database right case law to database copyright: copyright protects creative activities, while database right protects investments.
The extent and nature of effort that must be proven to establish that the database constitutes the author’s own intellectual creation. The court found that:
mere "sweat of the brow" effort is not sufficient;
the courts do not apply a qualitative assessment of the work; however, the author must have exercised judgment, taste or discretion (good, bad or indifferent) in selecting or arranging the contents of the database;
mere application of rules (such as compiling a complete list of all Acts of Parliament passed in the last 100 years) is not enough; and
it is not necessary that the reader of the database should be able to identify its author.
The court concluded that the claimants’ efforts in creating the fixtures amounted to work on selecting or arranging the contents of the database, and that there was sufficient judgment applied to that work for the fixtures to amount to the author’s own intellectual creation. The fixtures were therefore protected by database copyright.
This decision shows that database copyright will be available to database owners in some situations where database right does not apply, and provides useful guidance on how to assess whether there is database copyright (see box “The test for database copyright”).
It will therefore be welcomed by database owners, particularly those who are responsible for creating the underlying data (and so are less likely to benefit from database right). Database owners likely to benefit from this judgment will include other sporting bodies, although it should be noted that those who create their fixtures by mere drawing at random (as with most cup competitions and, it is understood, the Spanish football league) are unlikely to be able to demonstrate sufficient originality.
The decision is consistent with the aim (stated in various recitals) of the Directive of extending (rather than limiting) protection given to databases; if it had been held that football fixtures, which were subject to copyright in 1959, had ceased to be protected as a result of the Directive being introduced, that would have been a curious result.
Most of those who copy sport fixture lists tend to be either information-providers, such as Yahoo!, or involved in some form of sport betting. Such businesses will now have to take a licence, cease using a substantial part of the fixture lists, or see whether their use falls within one of the copyright defences, such as fair dealing for the purposes of reporting current events.
Ruth Hoy is a partner and John Wilks is an associate in the IP group of the London office of DLA Piper UK LLP.
DLA Piper acted for the claimants in this case.
Identify the data which are collected and arranged in the database.
Analyse the work which goes into the collecting and arranging of the data in the database.
Ask whether the work on selection or arrangement was the author’s own intellectual creation (and, particularly, whether it involved the author’s judgment, taste or discretion).
Ask whether the work is quantitatively sufficient to attract copyright protection.